Environmental inspections as coordinated by Belgian

Environmental Prosecutors

Dr. Carole M. Billiet U.Gent, Center for Environmental and Energy Law & Flanders Environmental Enforcement CourtMalta, IMPEL-Conference 1-4 October 2013

Informal system-induced coordination of environmental inspections by

prosecutors

I. IntroductionII. The public prosecutor’s system position:

some essential featuresIII.Dependency of the criminal sanctioning

track from the input of inspections / policeIV. Cost-effectiveness issues higher up should

shape the work bottom down: the proof issue

V. Informal complementarities creating coordination

I. Introduction Enforcement pyramid:

sanctions (punitive, remedial), ‘teeth of the law’

Public prosecutors decide about the access to criminal sanctions (principally punitive)

Environmental Lawforce project (2007-2011) A.o. database criminal sanctioning track Full environmental case-load of the resort of

the Court of Appeal of Ghent in 2003-2007 1156 judgments, 1882 defendants, 3561

accusations

II. The public prosecutors system position: some essential features1/ Dependency from environmental inspections and police: a case-load by notices of violation2/ A legally protected privilege/duty to develop an enforcement policy (no prosecution guideliness)

Prioritized offences - Agreement 2000 and 20123/ A system-position as sanctioning playmaker

Untill 1999/2009: 3 optionsSince then: 4 options (+ administrative fining)

4/ Necessity of cost-effectivenessToo scarce means for too much work

5/ Burden and risk of proof in accordance to the presumption of innocence (art. 6(2) ECHR)

III. Dependency of the criminal sanctioning track from the input of inspections/police

Far reaching dependency of the criminal sanctioning track from the input of environmental inspections

and police

Some empirical data

III. …III.1. Notices of violation open files General descriptive statistics (2007)

98% of the environmental files is opened because of a notice of violation (NOV)

The remainder (direct complaints): 2%

Confirmation – Data Flemish Region 2010 NOV police: 65,5% NOV environmental inspections: 29% Other (NOV too): 4,5% (other files, …) Direct complaint: 1%

III. …III.2. The focus of inspections Not a single accusation regarding

Non-ionizing radiation Act 1985 Environmental Taxes Act 1993 Ionizing radiation Act 1994 Ecolabel Act 1994 Cooperation Agreement 1995 on Packaging Waste Product Standards Act 1998 Marine Environment Act 1998 Seveso II Cooperation Agreement

Near to no accusations regarding Air Pollution Act 1964 European environmental regulations in general

III. …III.2. The focus of inspections … Many accusations regarding

Environmental Permitting Act 1985 (38%) Waste Act 1981 (31%) Manure Act 1991 (9%) Noise Act 1973 (5%)

Accusations regarding Pesticides Act 1969 Surface Water Act 1971 Groundwater Act 1984 General Environmental Policy Act 1995 Soil Cleanup Act 1995

III. …III.3. The quality of notices of violation

Data 1993-2002: 57% dismissals, of which half for technical reasons (lack of proof of the illegal facts, the offender (‘unknown offender’))

2010 (Flemish Region):55% dismissals, of which still 40% for technical reasons

III.III.4. For discussion

What to make about the non-existence of half of the (EU-based) environmental legislation in the sanctioning process?

The drafting technique of notices of violation keeps needing conceptualisation (‘NOV’s for Dummies’) and training

▫ For local police only?

IV. Cost-effectiveness issues higher up (should) shape the work bottom-down

The issue of proof - of the illegal behavior/facts and

of the criminal liability - is at the heart of the prosecution decision,

shapes the prosecution policy,in terms of cost-effectiveness too.

IV. …IV.1. The burden and risk of proof

Art. 6(2) ECHR: “Everyone charged with a criminal offence shall be presumed innocent untill proved guilty according to law” Barberà, Messegué and Jebardo v. Spain (1988)

Burden of proof Risk of proof

Proof of the constitutive elements of the offence

IV. IV.2.Enforceability of legal provisions

Proof of the constitutive elements of the offence

Some examples- Air plane noise (Brussels)- Forest protection decree (Flemish Region)

> Be aware of this crucial point when drafting NOV’s

IV. …IV.2. Enforceability of legal provisionsThe technical side of the formulation of standardsSome examples:Noise-Constatation through the senses-as opposed to measurementsEmission and immission standards- specific physical/chemical/microbiologic parameters-in specific units, simple to more complex-+ specified levels (instantaneous vs. calculated, avarage/ percentile over given time spans)

IV. …IV.3. Alpha provisions

‘Alpha provision’: the concept

Three categories … Obligation to have an authorization (‘permit’,

…) Secundary standards that contribute to the

transmission of information to the administration Examples Remember Al Capone

IV.IV.4. For discussion

The drafting of a NOV serves the prosecution (punitive sanctioning). As such, an eye for the issue of proof matters, even if it means a selection of the offences reported in the NOV

V. Informal complementarities creating informal coordination

One example: the use of the prosecution decision to achieve remedial action

Environmental Lawforce project▫ PO: opportunity dismissals and transaction

proposals are linked to remedial action, ▫ EPA: a systematic practice of precise

recommendations for remedial action linked to delays, leading to remediation in +90% of cases

Since 2009?

V. …For discussion

Informal complementarities need to be detected and taken into account in policy development by enforcement actors

Thank you for your presence and attention